Cases where the Use of Non Abortifacient Contraceptives can be Lawful

The case of threat of microcephaly within the scope of Zirka epidemics and the interview of Pope Francis during his way back flight from Mexico to Rome on this matter has led a ad hoc committee of the FIAMC to publish a text on cases where the use of non abortifacient contraceptives can be lawful, a text assessed by Father Jacques Suaudeau, Ecclesiastical Assistant of the FIAMC.

Are there some cases in which the use of a contraceptive by a woman would be lawful?

The Encyclical Humanae Vitae declared “ necessary that each conjugal act remain ordained in itself to the procreating of human life”(n°11) and, for that reason, considered the use of contraception (impeding fertilization for avoiding procreation) in the conjugal act ” intrinsically wrong “(intrinsece inhonestum)(n°14), eliminating any moral discussion about a possible exception in this illicit character of contraception, based on a physical (inability for using natural methods), psychological (mental disorder or handicap) or socioeconomic difficulty ( large number of children, poverty). There are however two cases where the use of a contraceptive means by a woman is not considered by catholic theologian moralists as illicit. The first one was presented within the encyclical Humanae Vitae itself; the second one was discussed between moral theologians before the Encyclical, and was admitted by them afterward at the light of the encyclical. These are:
– The therapeutic use of an agent which prevents or impedes fertilization (oestroprogestative combined “pill”, levonorgestrel or others).
– The self-defensive prevention of pregnancy in case of a threat of rape.

1) Lawfulness of the therapeutic use of an agent which may prevent fertilization (Humanae vitae n° 15)

The Encyclical Humanae Vitae, n°15, allows the use of “contraceptive” means when the intention of the couple who use this means is not contraceptive but therapeutic, even if that means prevents actually fertilization:
” The Church, moreover, does allow the use of medical treatment necessary for curing diseases of the body although this treatment may thwart one’s ability to procreate. Such treatment is permissible even if the reduction of fertility is foreseen, as long as the infertility is not directly intended for any reason whatsoever” (HV 15)

This article is very important because it situates the good or evil of contraception not in the physical act itself (to use a contraceptive agent) but in the intention of the moral subject.
The reasoning in paragraph 1 5 is the one of an act with double effect: the “effectus bonus” is the treatment of the pathological bodily condition which requires the use of the “contraceptive” agent, the “effectus malus”, is the hindrance to procreation, which is not directly wanted by the subject but comes as a consequence of the effectus bonus .

2) The taking of contraceptives in case of threat of rape

During the events arisen in what was still the Belgian Congo, at the time of the independence of this country, in 1960-1961, a debate opened between different theologians moralists on the lawfulness of the recourse to contraceptive means, in a preventive purpose, in case of threat of rape (E.Boissard, 1954, p. 168)[1]
Contrary to the rumor which spread afterward in the Church about this discussion, this debate remained as such, without practical conclusions, and no nuns received ever a “permission” from Pope Paul VI to use contraceptives in the threat of rape. Pope Paul VI was not yet Pope in 1960-61, and, in these years, the commercial diffusion of the contraceptive “pill” was in its early beginning and it is very doubtful that nuns in Congo could have at hands such a means. Finally, the “consultation to the Apostolic seat” which would have taken place at that time on that matter, as told by the rumor, is nowhere recorded. But the argument, even imaginary, has been useful to clarify what really was illicit in the use of contraceptive means, and in what conditions we should speak about “contraception” (which is a moral concept, based on the intention of the subject) and in what conditions we should speak only of a “lawful use of contraceptive means”, for health care or self-protection.

The debate began with an article published in 1961 in the journal Studi Cattolici, with three joined opinions written respectively by fathers Palazzini, Hürth and Lambruschini, article which took a stand in favor of the use of contraceptives by a woman who found herself under a threat of rape.[2]
Mgr. Palazzini called upon the notion of the “whole good” of the person. Father Hürth said that the sterilization realized by the contraceptive mean in the case of a threat of rape is licit because the person who takes the contraceptive does not intend to have a sexual intercourse, and does not actuate this sterilization to achieve a sexual encounter excluding the procreative end of the act.
Father Lambruschini justified the recourse to contraceptives as a just defense against an unjust aggressor.

The Encyclical Humanae Vitae came afterward to clarify the debate. At the light of the encyclical, Rev.M. Zalba, in 1968 [3], gave a new answer to the problem,. The Encyclical indeed removed the hormonal contraception from the scope of direct sterilization (unlawful as such) inherited from Pius XII, to put it under the prospect of the authenticity of the conjugal act (at the level of the intention of the subject). In the case of a rape, the suspension of the ovulatory activity by the woman does not enter within the scope of a human sexual act with its procreative end. It enters within the scope of the self-defense to protect the whole good of the subject. The Rev.P.Zalba added that the extension of this judgment to the case of the woman “assaulted sexually by her husband “(sexual violence in the marriage) was justified.

There has been never an official document from the Magisterium of the Church on this point, because it was not needed. The commentary of Rev. Zalba on the meaning of “contraception” in Humanae Vitae was correct. The illicit character of contraception stays in the wrong intention of the subject (having a sexual encounter without any risk of procreation) and not in the means itself. Therefore a shift in the intention of the moral agent changes the ethical appraisal of the use of a contraceptive means.

3) The discussion on the use of the condom for preventing HIV in sexual unions out of the perspective of the Christian marriage.

Following the teachings of Vatican II Council and of the encyclical Humanae Vitae the reflection of a growing number of moral theologians, inspired by a return to a truer concept of “natural moral law”, from St Thomas Aquinas, has brought a change in the way moralists consider today the ethical evaluation of human acts[4]. They have shifted from a moral “at the third person” (in which the attention is directed toward the object and the consequences of the action) to a moral “at the first person” (inspired by natural morals, and virtues ethics), in which the attention is more directed toward the intention of the person (without ignoring the materiality of the act and its consequences). This point of view leaves also more room to the role of conscience and formation of conscience in the evaluation of the morality of a human act.

This renewal of natural moral law allowed moral theologians to give a better answer to some contemporary problems, such as the one of HIV prevention using condoms. Martin Rhonheimer[5] examined that way if the immorality of the use of condoms in conjugal acts should also apply to the use of condoms as a means to prevent the spread of HIV though the non-human use of sex in prostitution and sexual promiscuity. Rhonheimer observed that the illegitimate character of the use of the condom is worth for a conjugal act within Christian marriage, that is supposed to be in accordance with determined values of the human sexuality. For this author, the negative judgment of the Church toward the use of the condom doesn’t apply to the situations that don’t enter into the the exercise of human sexuality within Christian marriage – as adultery, sexual promiscuity, “casual sex”, homosexual relationships or prostitution .

In a booklet prepared by the French “episcopal social commission”, entitled “SIDA, la société en question“, published in 1996, and addressing the question of HIV prevention, the theologian Xavier Lacroix[6] indicated, in reaction against the politics of undiscriminated generalized condom use, advocated by health authorities, and also against the opposite position of ”undiscriminated continence” for all couples, advocated by some catholic moral theologians, an approach that would be more attentive to the concrete situation of people, under the form of a progressive “trilogy” – condom use, limitation of the number of the sexual partners, continence – In this perspective, the recourse to condoms would be considered as a first step in the process of becoming responsible for oneself and for the other regarding the risk of HIV contamination. Once reached this first step, the seropositive subject should be helped to understand the meaning of sexuality, and to realize his/her responsibilities toward the others, moving that way to the second step in becoming responsible – the reduction in the number of sexual partners. The last step in the process of becoming sexually responsible would be the reach of conjugal chastity or continence. In the same booklet, Olivier de Denichin, s.j.[7], delegate of the French bishops for the moral matters concerning human life, considered the use of condoms by the teen-agers, in the prevention of HIV contamination, as “a first step in the becoming responsible” for those who were not able to keep continence.. This approach, inspired by the “law of gradualness” exposed in the Apostolic exhortation “Familiaris Consortio”[8], could be indeed valid if it remains within the principle of gradualness. It does not justify the use of condoms by married couples in conjugal acts, but considers that the use of condoms for preventing HIV spread does not enter under the moral scope of contraception, at least for those who are not yet able to live their sexuality according to natural moral law.

It is known that the Holty Father Benedict XVI gave an example of this approach of gradualness during an interview with the journalist Peter Seewald. According to this journalist, Benedict XVI would have given the example of a male prostitute choosing to use a condom in a conscious choice to prevent HIV infection, couched as “a first step in the direction of moralization, a first assumption of responsibility, on the way toward recovering an awareness that not everything is allowed and that one cannot do whatever one wants.”[9] This declaration provoked many different reactions. However it did correspond to the teachings of moral theology, as commented in a note sent forth at that time by the Congregation of the Doctrine of the Faith[10]. The observation of the Holy Father (which however cannot be considered as part of the Teaching of the Magisterium of the Church, because given in an informal interview) hinted at two points: the first one is that the immorality of contraception has no room in the bodily unions of prostitution or sexual promiscuity in which the procreation is, for principle, excluded (and still less, for this reason, in the homosexual masculine prostitution); the second is that the use of condoms is positively valued in this particular situation of the male prostitute, because of the taking of responsibility that could represent such use on his behalf, as potential contaminator.

There has been no official document from the Magisterium of the Catholic Church on this issue but it is clear from Humanae Vitae that there is “contraception” when a couple, engaging in sexual relationship as spouses, places a voluntary obstacle to procreation. Contraception does not apply to an inordinate use of sexuality, in prostitution or sexual promiscuity, without any true human relationship as a couple (which leaves an indeterminate space in between, regarding the “living together” situations).

4) The use of condom in HIV serodiscordant couples

With the continuous spread of HIV/AIDS, reaching heterosexual stable couples, came the multiplication of serodiscordant couples (couples with one person who is HIV-positive and one who is HIV-negative), often united by the bonds of marriage, to which the Church did not offer any other solution to their problem than total continence, for their lifetime[11]. This brought a reconsideration of the meaning of “contraception”, not from the perspective of the humane quality of the union as above, but within the scope of the intention of the subject, along with the reflection about the self-protective use of contraceptive in the case of threat of rape.

A first answer came from document of the Catholic Bishops of the United States, “The many faces of AIDS, a Gospel Response“/(1987), but this document used the incorrect arguments of the “lesser evil” and of the “common good.”[12] to allow the use of condoms, in some instances, by serodicordant couples. “Humanae Vitae” has already rejected the argument of “lesser evil” to justify the use of contraceptive means, and Janet E.Smith[13] had no difficulty showing the error made by the document. The recourse to the “lesser evil” argument suppose on the side of the subject a total lack of freedom, a “dead end” situation, in which the possible choice is only between two evils, among which one tries to avoid the worse one[14]. This applies badly to the case of condom use, for which there is always the solution of abstinence. Other moralists as James F.Keenan, S.J[15] have used a “double effect” reasoning to legitimate the recourse to condoms as mean of self-protection in such couples. The contraceptive effect of the condom in such context would be an indirect effect, not wanted, and, therefore, without moral incidence on the act[16]. But this reasoning applies only to these cases in which the means used for achieving the good action is morally neutral, and in which the lesser good consequence comes as an indirect result of the use of this neutral means. But, in the case of the condom use for HIV prevention, the good effect wanted (to protect the partner) is obtained through the illegitimate use of condoms and the casuistry of the “double effect” doesn’t not apply.

D.F.Kelly[17], Martin Rhonheimer[18] have made worth in this field the argument already developed from Humanae Vitae by Father Zalba about the threat of rape. Using the condom as means of self-protection or protection of the partner against the HIV in intimate relationships would not have the moral unlawfulness of contraception – it would not be actually “contraception“, because the condom is not used here for avoiding procreation but for self-protection against HIV contamination. The argument relays on Humanae Vitae n°15. When Paul VI doesn’t judge illegitimate the use of contraceptive agents as therapeutic means, even if they prevent fertilization and thus procreation, he does not say that this is a case of “lesser evil”, with only a choice between two evils. He says that that there is no more contraception because the intention is not contraceptive.

In an analogical way, the condom as fitting means for HIV prevention could be considered justified as such, even if there is the alternative of total sexual abstinence. For many couples of serodiscordant spouses who desire to follow the moral teachings of the Church, the moral obligation of abstinence can reveal difficult to live in the practice, during years, and would lead to the ruin of marriage, adultery or separation of the spouses.

This approach could be considered, for some couples in difficulty, within the scope of the law of gradualness.

The Magisterium of the Church has not provided a document on this particular topic.

5) The case of threat of microcephaly within the scope of Zirka epidemics

The statistically proven relationship between the rise in the number of newborns with microcephaly and the outgoing epidemics of zirka virus in the affected countries (Brazil in particular) raise a difficult moral question.

For the international organizations dealing with health and health care, the solution is clear: microcephalic babies have to be aborted, and the whole thing will be resolved with a good antenatal screening of mothers in these countries.

During his way back flight from Mexico to Rome, Pope Francis was interviewed about this “solution”, and strongly rejected such a proposal as criminal, saying: “Abortion is not the lesser of two evils. It is a crime. It is to throw someone out in order to save another”.

Questioned about the use of contraception for preventing the birth of microcephalic babies, the Pope recalled briefly all what has been said above, especially the case of the threat of rape, to which he alluded, saying:” On the “lesser evil” avoiding pregnancy, we are speaking in terms of the conflict between the fifth and the sixth commandment. Paul VI, a great man, in a difficult situation in Africa, permitted nuns to use contraceptives in case of rape”. Don’t confuse the evil of avoiding pregnancy by itself with abortion.. Avoiding pregnancy is not an absolute evil. In certain cases, as in this one, or in the one I mentioned of Blessed Paul VI, it was clear”

This answer about the possible use of contraception for preventing the birth of microcephalic babies calls for some comments:

1) This was an interview, in a plane, on a trip, with no notes, and no time for a prudent and well thought answer. It has no value on a magisterial standpoint.

2) The only mistake made by of Pope Francis in his answer is to have presented the “case of Congo” as an historical event, with a decision from Paul VI, while it was only a purely theoretical hypothesis constructed for a discussion between moralist theologians.

3) The point offered by Pope Francis is right: the case of the use of self-protective contraceptives for “threat of rape” gives by analogy a solution to the microcephalic problem, except that in the case of zirka virus the baby is not wanted because of the risk on neuronal alterations, while in the case of rape it is the situation of inhumane sexual attack which is considered, and the lack of freedom for the victim.

4) Still the case should be examined more attentively by moral theologians. It is no more a question of self-protection (as in the theoretical case of the Congo’s nuns) but of protection of a potential baby from a potential alteration through the prevention of the conception of that baby. At the time being, in absence of a vaccine, there are no other means to achieve actually such a prevention. Using contraceptives, the aim of the user is not to have sexual intercourse without responsibility, but to avoid the conception of a developmentally altered baby. But the intention remains contraceptive, and here is the problem. One could indeed object to that “easy” solution that the spouses could well achieve such a prevention through sexual abstinence or resorting to natural methods based on fertility awareness (when and where people have access to them through correct teaching and monitoring, which is not obvious). But then we will find the same problem than in the HIV serodicordant couple: the matrimony may enter in serious danger. And the matrimony has also to be protected. Once again, such a “pastoral” approach could be considered morally acceptable only within the scope of the ”law of gradualness”.

[8] “But man, who has been called to live God’s wise and loving design in a responsible manner, is an historical being who day by day builds himself up through his many free decisions; and so he knows, loves and accomplishes moral good by stages of growth[…]Married people too are called upon to progress unceasingly in their moral life, with the support of a sincere and active desire to gain ever better knowledge of the values enshrined in and fostered by the law of God. They must also be supported by an upright and generous willingness to embody these values in their concrete decisions. They cannot however look on the law as merely an ideal to be achieved in the future: they must consider it as a command of Christ the Lord to overcome difficulties with constancy. “And so what is known as ‘the law of gradualness’ or step-by-step advance cannot be identified with ‘gradualness of the law,’ as if there were different degrees or forms of precept in God’s law for different individuals and situations”. Apostolic exhortation Familiaris consortio of Pope John Paul II, n°34.

[9] Pope Benedict said: “There may be a basis in the case of some individuals, as perhaps when a male prostitute uses a condom, where this can be a first step in the direction of a moralization, a first assumption of responsibility, on the way toward recovering an awareness that not everything is allowed and that one cannot do whatever one wants. But it is not really the way to deal with the evil of HIV infection. That can really lie only in a humanization of sexuality.” in “Light of the World: The Pope, the Church, and the Sign of the Times,” Seewald’s six-hour interview, published by Ignatius Press.

[12] “The teaching of classical theologians might provide assistance as we search to bring into balance the need for a full and authentic understanding of human sexuality in our society and the issues of the common good associated with the spread of the disease”, in “The prevention of AIDS”, in The many faces of AIDS, a Gospel Response, November 1987.

[13] J.E.Smith, The “Many Faces of AIDS” and the Toleration of the Lesser Evil, Fellowship of Catholic Scholars Newsletter 11:3, June 1988, pp.5-10; the International Journal of Natural Family Planning, Spring 1988, vol.XII, n1, pp.1-15